Nowadays criminal law has root in philosophical and intellectual evolution in

18 century which climaxed by punishment and penalty thesis by Cesar Beccaria

in 1764. Cesar Beccaria's book was beginning of principle legality of penalties

and punishment and in depth of his idea, he codified criminal procedure code.

Beccaria believed that " only law can determine punishment for crimes, in

similar way, Montesquieu who believed in abstract power segregation Think

that " if judgment power and legislation power (legislature and judicature) won't

separate from each other, there will be no sign for freedom". Finally by creating

principle legality of penalties and punishment, basis was created for producing

peace and restricting parliament in desired decision in recognition penalties but

as we can see by passing year, this principle was not far from faults and this

matter today caused that in procedure of human right European bureau, there is

dialogue about qualification principle which in this thesis we explain this new

principle and weak and strong point of that issue.


Principle legality of penalties and punishments is one of the main principle of

penalty law. Aforementioned principle means that people have penalty

responsibility against some action which aforementioned action with no

ambiguity in law will be crime and there is punishment for them


Another word, the meaning of above principle is that, no action is crime unless

before that in law, it will be clearly and explicitly crime and whenever the crime

is proved, the judge is not allowed to determine punishment against criminal

action for condemn which is not in law but merely can sentence the condemn to

punishment which in predicted in law for that action. The most important goal

of government in principle legality of penalties and punishments consist:

legitimating lawful system governed in country via restricting interference of

government in penal justice according to right and freedom of people, merely

according to cases that forbidden action is applied and explained from law to


In each system that law will be backed to past , definition of crimes is

ambiguous, this matter cause increasing the qualification and selection if judge

and police; lack of observing this principle cause omitting law governance and

separating power. Aforementioned principle in support of constitution and

separating power from each other, play an important role.

Another word, the goal for governance of legality of penalties and punishments

is to restrict the governor in interpretation of penal law against parliament. The

reason for restriction is parliament selection and not selection of judicature,

means that parliament have power for setting up law and in opposite judicature

has the obligation for enforcement of law setup by parliament. Without

considering that this organization by criminology and unlimited interpreting of

law, indirectly enforce law.

As Phonlist, German lawmaker says that: principle legality of penalties and is a

shield foe citizen against unlimited power of government. This principle

protects people from cruelty pressure of majority and another word power


B) International documents


Contemporary international documents in aspirate from identification of

discussed principle of human right act and France citizen and they clarified this

principle. Clause 1 of article 15 regulate international covenant of civil and

political right (that from this moment we call it by summary covenant)" no one

because of action or not doing the action during commitment which is not crime

according to national and international law, will not be condemned and also

there will be determined no severe punishment than the action during crime

commitment. Article 2 clause 11 universal declaration of human right is

formalized by principle legality of penalties and punishment. Also

aforementioned principle in other international and regional documents is also



In long run, principle legality of penalties and punishments, that we can see

beginning of that in reflection of Cesar Beccaria, governed in penal lawmaking,

in the way that one of the fundamental principle and goal of this principle is

restricting the compass of parliament's option and lack of unlimited dominance

and prevention of desired decision making toward different kind of crimes.

Specific clarifying of crimes in law id the main and fundamental characteristic

for principle legality of penalties and punishment, but as we can see from

principle legality of penalties and punishment, somewhat we can see wastage of

people's right. It means that if our law is available and clear that community is

that is consist of different culture and levels will be informed? And with precise

look which show increasing crime in medium and low class of people in that

society, can we get right of people by reliance to legality principle? As we can

see, predicted crimes in law are not codified and lump that availiability to them

will be possible in a specific book and text of law have ambiguity and is so

changeable that community cannot have complete and accurate understanding

from it. In conclusion we should predict proper solution in this case how we can

punish people which are not informed accurately from this law? And if we

consider the goal of legislator from predicting crime in law and punishment

appropriate to that, if we can reach this goal by lack of knowledge of people

from crime and punishment of them? It seems a theory which is far from mind,

but today we can see new discussion in human right procedure of European

bureau which make us far from weak points of legality principle of crime and

that principle is quality principle of crime. As we said, quality principle has

three elements. 1- Non ambiguity 2- predictability, at last availiability of law.

This new principle to a much extent make us far from proposed problem in

legality principle, but by thinking about that we faced problem in this principle

and it is lack of mentioning scope of parliament option, which don not

mentioning that means omitting of that.

While in all this year, the most important element of legality principle and from

strong point of that, limiting the scope of parliament option and prohibition of

decisions is stylistic and eliminating this element by itself encounter us with a

big problem. So in conclusion. The ,mentioned suggestion in this thesis is using

quality principle by adding fourth element which is restriction of parliament that

we can get the right better and more and issue verdicts according to justice,

because by considering the content of quality principle we can conclude that the

goal of this principle is prevention of punishing the people for crimes that are

not accurately aware of them and even providing the availability to that laws ,

because of its ambiguity they do not have appropriate understanding of that

crime .



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